The morning news. [volume] (Savannah, Ga.) 1887-1900, 1887-12-06

taxpayer having rendered taN-recelvable c0u-
pons are denied 10 him in that trial by reason OF
the requirements in regard TO the nature and
quantity OF the proof as TO the genuineness of
the coupons, the errors OF law thus committed
course of judicial proceedings by a writ of error,
which, as it would present the Federal question,
might ultimately be used out in this court. BHt
it is not to he assumed in advance either that
such questions will arise, or that If they arise
they will be enormously decided The question,
therefore, is narrowed to the single inquiry OF
the equitable right of the complainants to en-
join the petitioners against bringing any such
suits at law.
ONE OF THE sUPPosITioNs,
1t seems to be supposed in the argument that
the right of tax payers in Virginia who have
rendered tax receivable coupons IN payment or
their taxes 20 the proper collecting officer, TO be
forever thereafter free from suit oy the state 10
recover Judgment for such taxes rests upon the
proposition that such tender is in law payment
OF the taxes, so as to eNtingulsh all claims for
them on the part of the State. This proposition
is said to he justified by the language of this
court in the case of PoindeXter VS. Greennhow
There is, however, in that opinion
nothing TO indicate that the party making the
tender was relieved from the operation of the
rule of the law making it necessary TO keep 1t
good, or that subsequent action at law or re-
covery of taxes would be unlawful, reservlng,
of course, in such case the admitted right of the
defendant to plead the fact of his tender, and
bring it into court in pursuance of the usual
practice in such cases as defense 1t follows,
therefore, in the present case that the personal
acts of the petitioners sought to be restrained
by order of the Circuit Court cannot be alleged
against them as an individual act in violation of
the rights of such taxpayers.
AIMED AT THE STATE.
The relief sought is against the defendants,
not in their individual, but in their representa-
tive capacity. The acts sought to be restrained
are the bringing of suits by the State of Vir-
gina in its own name and for its own use. Il
1nfI. to
by name it would have been repre-
sented by the same officers who are now
here The nature of this supposititious case
is identical with that of the case as actually
presented in ths bill with the single exception
that the State is named as the defendant. How
else can the State be forbidden by judicial
process to bring actions in its name except by
constraning the conduct of its officers, attor-
neys and agents, and if all such officers are
personally subjected to the process of the court
so as to forbid their acting in its behalf.
how can it be said that the State itself is not
subjected to the jurisdiction OF the court as an
actual and real defendant? Ii Is, however, in
sisted upon that it is within the jurisdiction of
the Circuit Court to restrain, oy injunction, ofh-
GERS of the State from executing the provisions
of State statute void by repugnancy to the
constitution of the United States, that there are
many precedents in which that jurisdiction has
been exercised under the sanction of this court,
and that the present case is covered by their
authority.
THE CASE OF OSBORNE.
Justice Matthews then reviewed carefully
the case of Osborne against the United
States, which is especially relied upop by
the counsel for the bond holders to maintain
this proposition, and says that it does not
apply to the questions now raised. He says
The present case stands upon an altogether
different footing. Admitting all that is claimed
as to the breach of the complainants contract
by the State there is, nevertheless, no founda
tion in law for the relief asked. For the breach
of its contract by the State, it is conceded there
is no remedy by suit against the State of Vir-
ginia itself, because OF the eleventh amendment
to the constitution, which secures to the State
immunity a ainst suit by individuals of other
States or aliens. This immunity includes not only
direct actions for damages for breach of con-
tract brought against the State by the name but
all other actions and suits against it whether at
law or in equity. bill of equity for specific
performance OF contract against the State by
name, it is admitted, could not be brought In
Hagood VS.. Southern it was decided that in
such bill where a State was not nominally
party TO the record brought against its officers
and agents having no personal interest in the
subject matter of the suit and defending only
as representing State where the things re-
qiured by decree to be done and performed by
them, are the very things which, when done and
performed, constitute the performance of the
alleged contract by the State, the court was
without jurisdiction because it was suit against
a State"
THE CONVERSE EoAUALLY TRUE.
The converse of that proposition must be
equally true, because it is contained in it,;
that is, q bill, the object of which is, by njunc-
tion, indirectly, TO compel the specific perform
ance of a contract by forbidding all those acts
and dolngs which constitute breaches of con
tract, must also necessarily be a suit against
the State. In such case though the State be not
nominally party on the record, If the defend
ants are its officers and agents, through
whom alone i car act In doing, and
of its contract, the suit is still IN substance,
though not in form, n suit against the State.
Such is the precise character of the suit in the
Circuit Court against the petitioners in which
an order was made, violation of which consti-
tutes the contempt for which they have been
committed to the Imprisonment from which
they seek be deyeS asaS w6st BY these the wrts Fs
ground Of distinction so far as protection Of the
constitution of the United States is invoked
between the contract rights OF the complainant
in such suit and other rights of person and Of
property. In these latter cases IL is said that
Jurisdiction may be exercised against ndi-
vidual defendants, Notwithstanding the official
character of their acts, while In case OF the
former description jurisdiction is denied.
THE DISTINCTION OBVIOUS.
The distinction, however. is obvious The
acts alleged in the bill as threatened by the de.
PENDANTS, the present petitioners, are violations
of an assumed contract between the State Of
Virginia and the complainants only as they are
considered to be acts Of the State of Virginia.
The defendants as individuals not being parties
to that contract are not capable IN law
of committing breach OF IL. There
is no remedy for breach Of CON
tract actual or apprehended, except upon
the contract itself and between those who are
by law parties 10 it. 1t cannot
be doubted that the eleventh amendment TO the
constitution operates to create an important
distinction between the contracts Of a State
with individuals and contracts between individ-
ual parties In contracts between State and
individuals by virtue of the eleventh amend
meut to the constitution, there being no rem
edy by suit against the State,
the contract Is substantially without sanction
except that which arises out of the honor and
good faith of the State ITSELF and these are not
subject to coercion. Although State may, in
the Inception OF contract, nave consented TO
subject itself to suit, IL may subsequently with
draw that consent and resume its original i'm
munity without any violation Of the obligation
of its contract IN a constitutional sense. The
very object and purpose Of the eleventh amend
ment were 10 prevent the indignity OF subject
ing State TO the coercive process OF Judicial
was thought TO be neither becoming nor con'
venient that the several States invested with
that large residuuu OF sovereignty which bad
not been delegated TO the United States shoild
be summoned as defendants to.answer the com
plants of private persons, or that the course Of
their public policy and administration OF their
public affairs should be subject TO control by the
mandates of judicial tribunals without their
consent and in favor Of individual interests.
COVERS BOTH CASES.
By fair and liberal Interpretation Of the
eleventh amendment IL must be held TO cover
not only suits brought against State by name,
but those also against its representatives, where
a State though not named as such is neyerthe-
Iegs the only real party against which alone re-